In late March, the New York State Bar Association (“NY Bar”) published Ethics Opinion 1164 in response to an attorney’s inquiry regarding liability in the post-representation destruction of client documents.
The opinion examines how a client’s request to destroy all documentation pertaining to a client matter can be accomplished without necessarily exposing the attorney to liability. Indeed, the opinion advised that an attorney may obtain a release and indemnification from the client to shield the attorney from future liability, before honoring a client’s request to destroy his documents.
The NY Bar analyzed both (1) whether an attorney has an obligation to delete a former client’s data, including backup copies of data, after the representation is terminated; and (2) whether an attorney can condition compliance with request for deletion upon a client’s signing an indemnification agreement, and whether, upon obtaining such a release, they could create an “inventory” keeping record of the types of files that were in the attorney’s possession during the representation.
Looking at a 2004 opinion, N.Y. State 780, the NY Bar stated that the New York Rules of Professional Conduct (the “Rules”) generally allow an attorney to retain client documents after termination of representation, at the lawyer’s own expense, even if the former client objects. Referencing NY State 780, the NY Bar recognized that a lawyer has an important interest in preserving client’s copies, but that this interest is not unqualified – in some cases, an attorney may be required to destroy records that are property of a former client even if the attorney has a significant interest in retaining copies to avoid future liability.
The NY Bar suggested that, while it could not catalog all instances in which the interests of the client in destruction override those of the attorney in preserving copies, some “common considerations are likely to recur,” such as “the strength of the client’s claim to ownership” and “the sensitivity of the documents.”
Ultimately, the NY Bar reasoned that so long as the attorney’s actions are “reasonable in light of all the facts and circumstances,” the attorney may request the client to sign a simple hold-harmless agreement and create a record of the documents being destroyed. Find the NY Bar’s Opinion here.
